Your Rights - LGBT Issues

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Vermont Anti-Discrimination Law

Sexual Orientation Discrimination

Does Vermont have an anti-discrimination law protecting gay, lesbian, and bisexual individuals from discrimination?

Does it also protect people perceived of as gay, lesbian, and bisexual?

Does it also protect people associated with gay, lesbian, and bisexual individuals?

¹Public Act 135, An Act Relating to Discrimination on the Basis of Sexual Orientation.

Transgender / Gender Identity Discrimination

Do protections exist for transgender people under state anti-discrimination laws?

Yes.  In May, 2007, Vermont became the third state in New England (and one of 12 states and the District of Columbia nationally) to explicitly prohibit discrimination on the basis of gender identity. The law defines gender identity as “an individual’s actual or perceived gender identity, or gender-related characteristics intrinsically related to an individual’s gender or gender-identity, regardless of the individual’s assigned sex at birth."[2]

² 1 V.S.A. § 144

Prohibited Areas of Discrimination

Employment Discrimination

To whom does the non-discrimination law apply and what does it forbid?

In addition, employment agencies may not participate in discrimination by refusing to classify or refer their customers for employment or otherwise discriminate because of sexual orientation. Unions may not deny union membership because of sexual orientation, or otherwise discriminate against its members because of sexual orientation.⁶

The law also forbids these entities from advertising in such a way as to restrict employment or membership because of sexual orientation.⁷

³21 V.S.A. § 495 (a)(1).
⁴21 V.S.A. § 495 (a)(3).
⁵21 V.S.A. § 495 (f).
⁶21 V.S.A. § 495 (a)(4).
⁷21 V.S.A. § 495 (a)(2).

Does the law apply to every employer in Vermont?

• An employer, agency or labor organization may defend against a discrimination claim by arguing that a “bona fide occupational qualification” of the particular job is that it have someone in it who is non-gay. There are no general occupational exemptions from the reach of the non-discrimination law, however, and this defense is very rarely successful.
• Religious institutions and their charitable and educational associations are sometimes exempt from the law.⁸ Where an employer is operated or supervised by a religious institution, it may preferentially hire members of its own religion, and may take employment actions that it “calculate[s will] ... promote the religious principles for which it is established or maintained.” This exemption, however, is not a carte blanche for an employer to use his or her religious beliefs as a justification for discriminating against a gay person.

⁸21 V.S.A. § 495 (e).

Does the Vermont law prohibit sexual harassment?

• submission to that conduct is made either explicitly or implicitly a term or condition of employment;
• submission to or rejection of such conduct by an individual is used as a component of the basis for employment decisions affecting that individual;
• the conduct has the purpose or effect of substantially interfering with an individual’s work performance or creating an intimidating, hostile or offensive work environment.⁹

In addition to prohibiting sexual harassment, Vermont law requires all employers, employment agencies and labor organizations to ensure a workplace free of sexual harassment by adopting a policy against sexual harassment, posting a notice outlining that policy, and providing all employees an individual written copy of the policy.¹⁰

It is as unlawful to sexually harass a gay, lesbian or bisexual person as it is to harass a non-gay person. Some harassment is specifically anti-gay, and may be more fairly characterized as harassment on the basis of sexual orientation. Other harassment is sexual in nature and more appropriately categorized as sexual harassment. Both types of harassment can happen to the same person, and both are forbidden.

Both the United States Supreme Court and several state courts have found same-sex sexual harassment to violate sexual harassment laws.¹¹

⁹ 21 V.S.A. § 495d (13).
¹⁰ 21 V.S.A. § 495h.
¹¹ Compare Oncale v. Sundowner Offshore Services, 523 U.S. 75, 118 S.Ct. 998 (1998) (man can sue for sexual harassment by other men under federal sexual harassment laws).

Public Accomodations

What is a “place of public accommodation”?

What does the law say about discrimination in places of public accommodation?

The protections based on marital status mean that a place of public accommodation may not discriminate against parties to a civil union.¹⁴

There is an exception to this rule, stating that this law does not prohibit an establishment that provides lodging to transient guests (i.e. hotels, inns) with five or fewer rooms from restricting its accommodations based on sex or marital status.¹⁵

¹²9 V.S.A. § 4501.
¹³ 9 V.S.A. § 4502 (a).
¹⁴ 15 V.S.A. § 1204 (e)(7) (prohibitions against discrimination based on marital status apply equally to parties to a civil union). See also discussion of civil unions below.
¹⁵ 9 V.S.A. § 4502 (d).

Housing

What is prohibited by the housing anti-discrimination law in Vermont?

This law also prohibits discrimination based on marital status, and therefore applies to discrimination against parties to a civil union. ¹⁷

In addition, it is unlawful to coerce, intimidate, or threaten a person regarding a housing matter, or interfere with a person’s ability to exercise their rights to be free from discrimination in housing.¹⁸

Are any landlords exempt from the housing anti-discrimination law?

The other exemption applies to religious institutions and the nonprofit institutes they operate, supervise or control. When such religious entities own or operate a dwelling for non-commercial purposes, they may give preference to persons of the same religion. These kinds of religious restrictions or preferences must be stated in the written policies and procedures of the religious entity. ²⁰

¹⁶ 9 V.S.A. § 4503 (a).
¹⁷V.S.A. § 1204 (e)(7).
¹⁸ 9 V.S.A. § 4503 (a)(5).
¹⁹9 V.S.A. § 4504 (2).
²⁰ 9 V.S.A. § 4504 (5).

Credit & Insurance

How does Vermont anti-discrimination law protect people with regard to credit and loans?

In addition, Vermont law provides specific non-discrimination provisions with regard to the issuance of bank credit cards,²² retail installment contracts or retail charge agreements (i.e. in-store credit cards),²³ motor vehicle retail installment contracts,²⁴ and agricultural finance leases.²⁵

Example: GLAD brought and settled a claim against a credit union that refused to allow a feminine appearing man to apply for a loan until he came back looking more masculine. A federal court ruled that this constituted a claim of sex discrimination in violation of the credit non-discrimination laws. ²⁶

²¹ 8 V.S.A. § 10403.
²² 8 V.S.A. § 14303.
²³ 9 V.S.A. § 2410.
²⁴ 9 V.S.A. § 2362.
²⁵ 9 V.S.A. § 2488.
²⁶ Rosa v. Park West Bank, 214 F.3d 213 (1st Cir. 2000).

How does Vermont anti-discrimination law protect people receiving insurance?

Insurers are also prohibited from directly or indirectly investigating or inquiring as to an applicant’s, insured’s or beneficiary’s sexual orientation in an application for insurance coverage or in connection with an application, as well as from using information about sex, marital status, medical history, occupation, living arrangements, beneficiaries, zip codes or other territorial designations to determine sexual orientation. ²⁸

Finally, insurers may not use sexual orientation or beneficiary designation in the underwriting process or in determining eligibility for insurance. ²⁹

In addition, insurers may not discriminate between married couples and parties to a civil union with regard to offering insurance benefits to a couple, a spouse, a party to a civil union, or their families. ³⁰

²⁷ 8 V.S.A. § 4724 (7)(B).
²⁸ 8 V.S.A. § 4724 (7)(C)(i).
²⁹ 8 V.S.A. § 4724 (7)(C)(ii).
³⁰ 8 V.S.A. § 4724(7)(E).

Pursuing a Complaint

How do I file a complaint of discrimination?

State Employment, Public Accommodations, or Housing

• If you believe you have been discriminated against in employment by a state agency, or if you believe you have been discriminated against in public accommodations (for example, denial of service in a retail establishment or other business), or in housing, you may file a complaint with

  The Vermont Human Rights Commission
  135 State Street, Drawer 33
  Montpelier, VT 05633-6301
  (800) 416-2010
  civilrights@atg.state.vt.us

  Complaining parties must complete a questionnaire, which the Civil Rights Unit will send to you or you can find at
  http://www.state.vt.us/atg/CRU Questionnaire.htm
• You may also file your case directly in the superior court of the county where the alleged discrimination occurred.

Credit or Services

• If you believe you have been discriminated against in the provision of credit services, retail installment contracts, or insurance, you may file a complaint in writing with the

  Department of Banking, Insurance, Securities and Health Care Administration
  89 Main Street, Drawer 20
  Montpelier, VT 05620-3101
  

  You can contact the Banking Division for complaints involving credit services or installment contracts at (802) 828-3307, and the Insurance Division for complaints involving insurance at (802) 828-3301. In addition, you may want to contact the Vermont Human Rights Commission.
• If you believe you have been discriminated against with regard to an agricultural finance lease, you may file a complaint with the

  Consumer Protection Division of the Office of the Attorney General
  Consumer Assistance Program
  104 Morrill Hall-UVM
  Burlington, VT 05405
  (800) 649-2424
  consumer@uvm.edu
  www.state.vt.us/atg/complaint form.htm
  

Do I need a lawyer?

What are the deadlines for filing a complaint of discrimination?

³¹ Vt. Code R. 80 250 001, Rule 1.  

What happens after a complaint is filed with the Commission or the CRU?

If you file a complaint with the CRU, the process is very similar, and is described in detail on the CRU’s website:
www.state.vt.us/atg/Civil Rights Unit Process.htm

The CRU allows the parties to engage in voluntary settlement discussions to resolve the case at any point during the investigative process. If these efforts fail, at the end of the investigation the CRU issues findings stating whether there was a violation of law.

If reasonable grounds are found, the Commission will send the case for “conciliation” or settlement proceedings, unless the Commission finds an emergency. If negotiations fail to produce a settlement agreeable to all parties within six months, the Commission will either file a claim against the respondent in the Superior Court or dismiss the proceedings, unless the parties agree to an extension in order to complete ongoing negotiations. ³³

Similarly, if the CRU finds a violation of law, the respondent will be asked to engage in settlement negotiations to try to resolve the case. If these negotiations fail, the CRU may file a complaint against the respondent in Superior Court.

If reasonable grounds or a violation of law are not found, the case is over within the Commission³⁴ or the CRU.

At this point, or at any point in the process at the Commission or CRU, you may decide to file a case in court. It is crucial to always keep in mind the deadlines for filing such a case, as discussed above. If you do so while an investigation is pending at either of these agencies, the agency may close the investigation, unless it determines that there is good cause to continue it and make a final determination.³⁵ If the agency continues its investigation and finds reasonable grounds, the agency may try to intervene in a case you have filed in order to pursue the state’s interest in enforcing the antidiscrimination laws.

³²9 V.S.A. § 4554 (a) – (c).
³³ 9 V.S.A. § 4554 (e).
³⁴ V.S.A. § 4554 (d).
³⁵ Vt. Code R. 80 250 001, Rule 23.

What are the legal remedies the court may award for discrimination if an individual wins his or her case there?

The remedies for a successful complainant may include, for employment cases, hiring, reinstatement or upgrading, back pay, front pay, restitution of wages or other benefits, damages, including those for emotional distress, civil penalties (where applicable), and punitive damages. ³⁶

Public Accommodations and Housing

In public accommodations and housing cases, remedies may include injunctive relief, compensatory damages (expenses actually incurred because of unlawful action), and punitive damages.³⁷ In addition, criminal penalties of fines up to $1000 may be imposed. ³⁸

In all of these cases, the court may grant attorney’s fees, costs and other appropriate relief that is consistent with the purposes of the anti-discrimination laws (e.g. training programs, posting of notices, allowing person non-discriminatory access to and use of public accommodation).

³⁶ 21 V.S.A. § 495b.
³⁷ 9 V.S.A. § 4506.
³⁸ 9 V.S.A. § 4507.

Are there other ways to pursue a complaint for discrimination?

1. Union: : If you are a member of a union, your contract (collective bargaining agreement) may provide additional rights to you in the event of discipline, discharge or other job-related actions. In fact, if you obtain relief under your contract, you may decide not to pursue other remedies. Get and read a copy of your contract and contact a union representative about filing a complaint. Deadlines in contracts are strict. Bear in mind that if your union refuses to assist you with a complaint, you may have a discrimination action against them for their failure to work with you, or for failure of duty of fair representation.
2. Federal Agencies: Sometimes federal anti-discrimination law applies as well as state law. For example, federal law forbids discrimination based on race, sex, age, religion and disability, but not on the basis of sexual orientation. Thus, a gay person with HIV who is fired from a job can file with the Commission or CRU (for sexual orientation and disability discrimination) as well as the federal Equal Employment Opportunity Commission (EEOC) (for disability discrimination only).

   You do not have to file separately at the EEOC because filing a complaint with the CRU initiates the process under federal law as well. The CRU investigates federal claims under the parallel state laws and then makes a recommendation to the EEOC at the end of the investigation.

   Federal non-discrimination laws apply only to employers with at least 15 employees, and complaints must be filed within 300 days of the discriminatory act.

3. State or Federal Court: After or instead of filing with the Commission, CRU or EEOC, you may decide to file the case in court. You may file in state court at any point within the time limitations, as discussed above. In order to file in federal court, however, you must remove your case from the EEOC, and there are rules about when and how you must do this that the EEOC can explain.

   In addition, a person may file a court case to address other claims that are not appropriately handled by discrimination agencies, such as when a person is fired in violation of a contract, fired without the progressive discipline promised in an employee handbook, or fired for doing something the employer doesn’t like but that the law requires. Also, if a person has a claim for a violation of constitutional rights, such as a teacher or governmental employee who believes his or her free speech or equal protection rights were violated, then those matters must be heard in court.

What can I do if my employer fires me or my landlord evicts me because I filed a complaint of discrimination?

³⁹ 9 V.S.A. § 4503 (a)(5) (retaliation prohibited in public accommodations and housing); 21 V.S.A. § 495 (a)(5) (retaliation prohibited in employment). See also Provencher v. CVS Pharmacy, 76 F.E.P. Cases (BNA) 1569 (1st Cir. 1998) (upholding federal retaliation claim of gay man).

What can I do to prepare myself before filing a complaint of discrimination?

As a general matter, people who are still working with or residing under discriminatory conditions have to evaluate how filing a case will affect their job or housing, and if they will be able to handle those possible consequences. Of course, even if a person has been fired, or evicted, he or she may decide it is not worth it to pursue a discrimination claim. This is an individual choice, which should be made after gathering the information and advice to make an informed choice.

Some people prefer to meet with an attorney to evaluate the strength of their claims before filing a case. It is always helpful if you bring to the attorney an outline of the problems you experienced on the job, organized by date and with an explanation of who the various players are (and how to get in touch with them). Make it as factual as possible, focusing on specific actions, events and exchanges that illustrate the discrimination. Try to have on hand copies of your employee handbooks or personnel manuals, any contracts, job evaluations, memos, discharge letters and the like. If you are concerned about a housing matter, bring a copy of your lease, along with any notices and letters you have received from your landlord.

Can I file more than one type of discrimination complaint at once, for example, if I believe I was fired both because I am a lesbian and Latina?

Family Law

Marriage and Civil Unions

Can same-sex couples marry in Vermont?

Can same-sex couples obtain any legal recognition of their relationships in Vermont?

What is a civil union?

As of July 1, 2000, a same-sex couple may enter into a civil union if they meet the following criteria:

• Neither person may be a party to another civil union or a marriage;⁴²
• The parties must be of the same sex;⁴³
• Each person must be at least age 18, be competent, and not be under guardianship or have written consent from the guardian;⁴⁴ and
• The parties may not be closely related by blood.⁴⁵

⁴⁰ 744 A.2d 864 (1999).
⁴¹ GLAD filed Baker v. State together with co-counsel in Vermont. GLAD is proud to have helped secure greater protections for gay and lesbian Vermonters and their families.
⁴²15 V.S.A. § 1202 (1).
⁴³15 V.S.A. § 1202 (2).
⁴⁴ 18 V.S.A. § 5163.
⁴⁵15 V.S.A. § 1203.
⁴⁶ 18 V.S.A. §§ 5160, 5161, 5164.

What protection will my partner and I gain if we join in civil union?

Vermonters who enter into a civil union with a same-sex partner will be treated as married for purposes of the laws of Vermont. They will go from being “legal strangers” to being “legal next of kin” as described above.⁵⁰

The protections in the civil union law include:

• Preferences for guardianship of and medical decision-making for an incapacitated spouse; ⁵¹
• Automatic inheritance rights; ⁵²
• The right to leave work to care for an ill spouse; ⁵³
• Hospital visitation rights; ⁵⁴
• Control of a spouse’s body upon death; ⁵⁵
• The right to be treated as an economic unit for state tax purposes; ⁵⁶
• The duty of support spouses owe one another;⁵⁷
• The right to sue for the wrongful death or injury to a spouse and the right to victim’s compensation;⁵⁸
• Greater access to family health insurance policies; ⁵⁹
• Parenting rights;⁶⁰ and
• The right to divorce and to an ordered method for ascertaining property division as well as child custody and support. ⁶¹

⁴⁷ 15 V.S.A. § 1204 (a).
⁴⁸15 V.S.A. § 1204 (b).
⁴⁹2000 P.A. 91, § 39 (a).
⁵⁰ 15 V.S.A. § 1204.
⁵¹ 15 V.S.A. §§ 1204 (e)(10), (11), (19).
⁵² 15 V.S.A. §§ 1204 (e)(1), (16).
⁵³ 15 V.S.A. § 1204 (e)(12).
⁵⁴ 15 V.S.A. § 1204 (e)(10).
⁵⁵ 15 V.S.A. § 1204 (e)(11).
⁵⁶ 15 V.S.A. § 1204 (e)(14).
⁵⁷ 15 V.S.A. § 1204 (c).
⁵⁸ 15 V.S.A. §§ 1204 (e)(2), (8).
⁵⁹ 15 V.S.A. § 1204 (e)(5).
⁶⁰ 15 V.S.A. §§ 1204 (e)(3), (4), (f).
⁶¹ 15 V.S.A. §§ 1204 (d), 1206.
⁶² 15 V.S.A. § 1204 (e)(7).

Are there any limitations on civil unions in Vermont?

In addition, much uncertainty remains about how other states will treat civil unions. GLAD thinks the legal status of civil unions should be respected in all other states, but it will take time for this state of affairs to evolve. To date, two appellate courts have not respected civil unions (Connecticut and Georgia),⁶⁴ but trial courts in New York and West Virginia have.⁶⁵ In addition, none of the very few cases that have considered this issue involved Vermonters. They have all involved non-Vermonters who joined in civil union and returned home. See GLAD’s publication, “A Historic Victory: Civil Unions in Vermont” and stay tuned to www.glad.org for further publications and developments.

⁶³ 32 V.S.A. §§ 3802, 5812, 7401.
⁶⁴ Rosengarten v. Downes, 802 A.2d 170 (Conn. App. Ct. 2002) (trial court had no jurisdiction to dissolve civil union); Burns v. Burns, 253 Ga. App. 600 (2002) (mother was not married to her civil union spouse and thus, under divorce consent decree, could not have visitation with children while cohabitating with civil union spouse). A trial court in Texas respected a civil union for purposes of dissolving it, but later vacated its decision at the request of the state Attorney General and granted a new trial. In the Matter of the Marriage of R.S. & J.A., No. F-185.063, Agreed Final Decree of Divorce (Tx. Dist. Ct., 279^th Judicial Dist. Mar. 3, 2003). The parties subsequently withdrew their suit.
⁶⁵ Langan v. St. Vincent’s Hopsital of N.Y., No. 11618/02, Order on Motion for Dismissal and Cross-Motion for Partial Summary Judgment (N.Y. Sup. Ct. Apr. 14, 2003) (granting civil union spouse standing to sue for the wrongful death of his civil union spouse); In re the Marriage of Misty Gorman and Sherry Gump, No. 02-D-292, Order Dissolving Civil Union (W.V. Fam. Ct. of Marion County Jan. 3, 2003).

Is my employer required to provide health insurance to my civil union spouse?

Private employers employing people in Vermont may try to argue that they may legally deny spousal benefits to couples joined in civil union. If your employer attempts to deny you or your civil union partner health insurance benefits that are provided to the married spouses of fellow employees, contact GLAD.

⁶⁶ 8 V.S.A. § 4063a.
⁶⁷ 21 V.S.A. § 495; 15 V.S.A. § 1204 (e)(7).

How do I get out of a civil union?

⁶⁸ 15 V.S.A. § 1206.
⁶⁹ 15 V.S.A. § 592.

Without getting a civil union, what steps can a couple take to safeguard their legal relationship in Vermont?

1. Relationship Agreement or Contract: Cohabitation agreements regarding property and finances provide a way for couples to sort out their affairs in writing before a separation. This kind of document serves a similar function to a pre-nuptial agreement. As long as the contract is not about sexual services and complies with the requisites for a valid contract, it has a good chance of being upheld as valid. Bear in mind that, as in any state, specific provisions concerning children may not be enforced according to their terms because it is always in the court’s power to determine the best interests of children. (See discussion below concerning parenting agreements).
2. Power of Attorney:Any competent person may appoint another person as his or her “attorney-in-fact” for financial matters in the event the one becomes incapacitated or disabled.⁷⁰ If no such appointment is made, then a “family” member will be empowered to make decisions for the disabled or incapacitated individual.

   A person may also indicate his or her preference regarding the appointment of a guardian -- a longer-term appointment that applies to all areas of a mentally incapacitated person’s personal care and financial affairs (court considers preference of incapacitated person in appointing guardian).⁷¹ The document indicating this preference should be executed with all of the formalities of a will and should be updated to keep track of all aspects of a person’s personal and financial situation.

3. Durable Power of Attorney for Health Care: Because medical care providers look to next-of-kin to make health care decisions for an incapacitated individual, an unmarried person must execute a durable power of attorney for heath care if he or she wishes another person to make those decisions instead of the next-of-kin family member. According to Vermont law, a person may appoint a health care agent to make decisions for him or her upon incompetence.⁷² This can be revoked at any time by creating a new health care proxy or by a clear expression of revocation. People often give a copy of their durable power of attorney to their doctors and sometimes to family members. In addition, instructions regarding anatomical gifts may be included within powers of attorney for health care, as well as in living wills or on a driver’s license. ⁷³
4. Living Will/Terminal Care Documents: A person 18 years or older may execute a document commonly known as a terminal care document, in the event that he or she is incapable of participating in decisions about his or her care, directing that no extraordinary measures be used to prolong his or her life when in a terminal condition. ⁷⁴
5. Will: : Without a will, a deceased unmarried person’s property passes to: (1) his or her children; (2) his or her family; (3) if next-of-kin cannot be located, to the state.⁷⁵ If the person wishes to provide for others, such as his or her partner, a will is essential. Even if a person has few possessions, he or she can name in the will who will administer his or her estate. If a person has children, he or she can nominate the future guardian of the child in a will.
6. Funeral Planning Documents: Upon death, a person’s body is given to their next-of-kin. This can mean that a person’s own partner has no right to remove the body or make plans for a final resting place. You can try to avoid confusion and conflict on this issue by leaving explicit written directions giving another person (such as your partner or a friend) control over the funeral and burial arrangements. Some people include these instructions as part of a will, but since a will may not be found for days after death, it is preferable to give the instructions to the person you want to take care of matters as well as to family members. Additionally, these instructions could be included in a durable power of attorney for health care.

⁷⁰ 14 V.S.A. §§ 3501-3516.
⁷¹ 14 V.S.A. § 3072 (consideration of ward’s preference in appointing guardian).
⁷² 14 V.S.A. §§ 3451-3467.
⁷³ 18 V.S.A. § 5239.
⁷⁴ 18 V.S.A. § 5253.
⁷⁵ 14 V.S.A. § 551.

Do I need these documents if I am in a civil union?

Does a person need an attorney to get these documents?

If a couple separates, what is the legal status of these documents?

If a person has changed his or her mind about who should be his or her attorney-in-fact, or health care agent, or beneficiary or executor under a will, or funeral planner, then those documents should be revoked -- with notice to all persons who were given copies of those documents, and new documents should be prepared which reflect the person’s present wishes.

⁷⁶ 15 V.S.A. § 1205.

Are there any other legal relationships I could enter into to protect my family?

People enter into a reciprocal beneficiary relationship by presenting a signed, notarized declaration of a reciprocal beneficiaries relationship to the Commissioner of Health, paying a $10 fee, and receiving a certificate reflecting the filing of the declaration.⁷⁸ This relationship can be terminated either by following the same filing process for entering it, or if one of the parties enters into a civil union or marriage. ⁷⁹

⁷⁷ 15 V.S.A. §§ 1301, 1303.
⁷⁸ 15 V.S.A. § 1304.
⁷⁹15 V.S.A. § 1305.

Domestic Partnership

What is domestic partnership?

Does Vermont provide domestic partner benefits to state employees?

In addition, Vermont state employees who are spouses in a civil union are eligible for the same benefits available to married state employees. If you have a civil union, you do not need to fill out the domestic partners application.

Can cities and towns in Vermont provide domestic partner health insurance benefits to their own employees?

What kinds of domestic partner benefits may private employers provide?

Are there differences in treatment of benefits extended to domestic partnership, civil union, and married spouses?

Can I use the state non-discrimination law to force my employer to provide domestic partnership benefits?

⁸⁰ See Internal Revenue Code, Private Letter Ruling 9603011 (Jan. 19, 1996).
⁸¹ 21 V.S.A. § 495 (f).

Adoption

Can a single gay individual adopt a child in Vermont?

Can same-sex partners together adopt a child in Vermont?

What is the advantage of doing a second parent or joint adoption?

Without an adoption, the non-legal parent needs special permission to seek medical care for the child, or to attend school meetings. With an adoption, the adopting parent is a legal parent entitled to make decisions for the child in day-to-day and emergency matters without special authorization.

With an adoption, if one parent dies, the other parent will automatically assume custody of the child without a fight from others. In addition, the child would have the automatic right to inherit from the deceased parent, even if there is no will, and possibly to collect social security survivor benefits.

Finally, if the couple separates, then the adoption means that both parents have the right to custody and visitation, and any disputes will be decided based on what is in the best interests of the child, rather than on who is the legal parent, because both parents will have equal legal standing.

Do we need to do a second-parent adoption if we have a civil union?

If same-sex parents raise a child together, but only one is the “legal” parent (because of birth or adoption), then what rights does the other parent have vis-à-vis the child?

If a couple entered into a civil union after the child’s birth or adoption by one of the parties, however, the “non-legal” parent stands in the shoes of a stepparent. This means that during the duration of the civil union, the stepparent has a duty to support the child if the legal parent cannot, so long as the stepparent is living with the child. ⁸⁷

Further, upon dissolution, the stepparent may have less difficulty seeking access to the child. The Vermont Family Court, rather than the Superior Court whose jurisdiction was at issue in Titchenal, determines custody, visitation and support issues upon the dissolution of a civil union. ⁸⁸ The stepparent may be awarded custody or visitation under certain circumstances, but will not stand on equal footing with the legal parent, and will need to meet a higher burden in order to get custody of the minor child. ⁸⁹

Short of joint adoption or second parent adoption, how can a family protect the interests of the child vis-à-vis his or her second parent?

Co-parenting Agreement: Couples may create an agreement setting out the parents’ expectations about each other’s roles and their plans in the event of separation, disability or death. While these agreements may not be given effect by courts, they are important indicators of what the couple believed was in the best interests of the child, and thus may be influential (although not binding) on a court.

Wills: : The legal parent may nominate a guardian of the child upon the parent’s death.⁹⁰ These wishes are given strong preferences by courts. Of course, if the child has another legal parent living, then that person would have priority over the nominated guardian.

Power of Attorney: This document is signed by the parent and authorizes another person (the attorney-in-fact) to make a wide variety of decisions and arrangements for the child, including matters related to health care, school and finances, depending on the terms set forth in the power of attorney. Although these authorizations have been generally respected by schools and pediatricians, among others, their validity has not been tested in court.

⁸² 15A V.S.A. § 1-102
⁸³In re B.L.V.B., 160 Vt. 368 (1993).
⁸⁴ 15A V.S.A. § 1-102.
⁸⁵ 15 V.S.A. § 1204 (f).
⁸⁶ 693 A.2d 682 (Vt. 1997).
⁸⁷ 15 V.S.A. section 296.
⁸⁸ 15 V.S.A. § 1206.
⁸⁹ Paquette v. Paquette, 146 Vt. 83 (1985).
⁹⁰ 14 V.S.A. § 2656.

Child Custody & Visitation

If I have a child from a former heterosexual relationship, and I am now involved with a same-sex partner, can my “ex” use this against me to deny me custody or visitation of my kids?

The few lower courts that have addressed the issue have required a party raising a parent’s sexual orientation to demonstrate a relationship between the parent’s sexual orientation and the child’s best interests. ⁹²

What are the factors for making custody determinations generally?

• the relationship of the child with each parent and each parent’s ability to provide the child with love, affection and guidance;
• each parent’s ability to assure that the child receives adequate food, clothing, medical care, other material needs and a safe environment;
• each parent’s ability to meet the child's present and future developmental needs;
• the quality of the child's adjustment to the child's present housing, school and community and the potential effect of any change;
• each parent’s ability to foster a positive relationship and frequent and continuing contact with the other parent;
• the quality of the child's relationship with the primary care provider, if appropriate given the child's age and development;
• the relationship of the child with any other person who may significantly affect the child;
• the parents’ ability to communicate, cooperate with each other and make joint decisions concerning the children where parental rights and responsibilities are to be shared or divided; and
• evidence of abuse, and the impact of the abuse on the child and on the relationship between the child and the abusing parent.

In addition, the court may not prefer one parent over the other because of the sex of the child, the sex of a parent or the financial resources of a parent. ⁹⁶

How is “sexual orientation” used in custody proceedings?

Does it matter if my “ex” knew I was gay or lesbian or might be before we separated?

Can a court keep my kids from visiting when my partner is present?

⁹¹ 15 V.S.A. § 667.
⁹² Medeiros v. Medeiros, 8 Fam. L. Rep. 2372 (Apr. 8, 1992) (mother’s lesbian relationship did not present substantial risj of harm to children); Barker v. Rawson, No. F108-5-91 AnDmp (Addison Fam. Ct. Nov. 27, 1991) (grandmother’s lesbianism in no way affects her visitation rights).
⁹³ 15 V.S.A. § 665.
⁹⁴ 15 V.S.A. § 666.
⁹⁵ 15 V.S.A. § 665.
⁹⁶ 15 V.S.A. § 665.
⁹⁷ 15 V.S.A. § 668.

Domestic Violence

What is domestic violence?

Do the domestic violence laws apply to people in same-sex relationships?

How do I get a court order protecting me from an abusive partner?

If you are in immediate danger from harm, you can file an application for a temporary order.¹⁰¹ All of the courts are required to have procedures for people to file these applications after regular court hours, or on weekends and holidays.¹⁰² Temporary orders are generally issued upon request, based on the existence of a relationship between victim and offender that is covered by the law and a credible allegation of abuse or threats of abuse. The order can include:

• an order restraining the defendant from abusing you and from contacting you in person, by phone or by mail,
• prohibiting the defendant from coming within a fixed distance of you, your residence, or other designated locations where you are likely to spend time, and
• assigning child custody and requiring child support.

The order will stay in effect for a fixed period of time, at the end of which the court may extend it for as long as it deems necessary to protect the victim. The court does not have to find that abuse took place during the time covered by the order to extend it. ¹⁰⁵

You don’t need a lawyer to get the temporary order, but it may be helpful to have one for later hearings if you think the abuser will contest the order. The court administrators may be able to connect you with agencies that help victims seek relief and gain access to the courts. ¹⁰⁶

If for some reason you decide not to go through with the legal process, you should show up in court anyway and ask that the order be dismissed. Failure to show up might make the court think you are unreliable if you need legal help in the future.

Violation of an abuse order is a criminal offense and can result in the immediate arrest of the abuser, as well as imprisonment of up to six months and a fine of up to $1000.¹⁰⁷ It is worth noting that restraining orders do not restrict the abuse victim’s activities or contacts.

A victim may participate in an address confidentiality program, through which the secretary of state gives the victim another address to use in order to keep the actual address confidential from the public. ¹⁰⁸

There are other laws that prohibit stalking, harassing and trespassing that may also apply to your situation, but are beyond the scope of this document. For more information, you may wish to consult the Vermont Center for Crime Victim Services at 1-800-750-1213 or http://www.ccvs.state.vt.us/.

If I go to court, will I “out” myself for all purposes?

Where can I go to get help?

Does domestic violence play a role in custody decisions?

⁹⁸ See 15 V.S.A. § 1101.
⁹⁹ 15 V.S.A. § 1101.
¹⁰⁰ 15 V.S.A. § 1103.
¹⁰¹ 15 V.S.A. § 1104.
¹⁰² 15 V.S.A. § 1106.
¹⁰³ 15 V.S.A. § 1104.
¹⁰⁴ 15 V.S.A. § 1107.
¹⁰⁵ 15 V.S.A. § 1103.
¹⁰⁶ 15 V.S.A. § 1106.
¹⁰⁷ 15 V.S.A. § 1108.
¹⁰⁸ 15 V.S.A. § 1152.
¹⁰⁹15 V.S.A. § 665.

Hate Crimes, Sex Laws & Police

Hate Crimes & Violence

Does Vermont have a hate crimes law?

In addition to being subject to criminal prosecution, the Attorney General’s office may seek civil penalties from a perpetrator of up to $5000 (payable to the state) plus costs and attorney’s fees for every violation of the criminal hate crimes statute and for violations of any injunctions imposed (see discussion below). ¹¹¹

How does the law define what is a hate crime?

According to the Attorney General’s office, assaults, unlawful mischief (damage or destruction of property), telephone harassment and disorderly conduct (by public yelling of threats and abuse) are the most common hate crimes in Vermont. ¹¹³

Where can I call if I think I’ve been a victim of a hate crime?

• an order to stop the hate-motivated behavior and restrict the perpetrator’s ability to contact you in any way;
• money damages to compensate you for the injury caused by the crime;
• money damages to punish the perpetrator;
• costs and attorney’s fees; and
• any other relief the court thinks is appropriate.

• prohibit the perpetrator from committing any crime against you or other people;
• prohibit the perpetrator from contacting you; and
• prohibit the perpetrator from coming near you, your home, or other places where you are likely to be (i.e. workplace, homes of family members, etc.).

A final order can be issued for up to two years, but the court can extend the order for any amount of time if it finds it is necessary to protect the victim. Violating these kinds of orders is a crime, subject to immediate arrest, imprisonment and fines. ¹¹⁶

¹¹⁰ 13 V.S.A. § 1455.
¹¹¹13 V.S.A. § 1466.
¹¹² 13 V.S.A. § 1455.
¹¹³ www.state.vt.us/atg/hate crimes.htm.
¹¹⁴ 13 V.S.A. § 1457.
¹¹⁵ 13 V.S.A. § 1461.
¹¹⁶ 13 V.S.A. §§ 1461, 1465.

Criminal Sex Laws

Does Vermont have a sodomy law?

If it’s not illegal for gay people to have sex, why are gay people still getting arrested?

Most gay people arrested for sexual activity are arrested for activity occurring outdoors. The law regarding lewd and lascivious conduct prohibits “open and gross lewdness and lascivious behavior.”¹¹⁸ This law targets sexual activity that is obvious and not concealed, and requires no more than one witness.¹¹⁹ This one witness can be anyone, including the person who complains about the conduct or the police.

This law has been applied to people having sexual encounters in public. Bear in mind that sexual activity should not be illegal simply because it takes place outdoors, in parked cars, or on public lands. A great deal depends on the overall circumstances (i.e. time of day, level of seclusion). ¹²⁰

The State has a legitimate law enforcement interest in protecting the general public from open displays of sex – whether between people of the same sex or of a different sex. Socializing and expressions of same-sex affection that does not involve the touching of genitals or buttocks or exposure of those is not illegal, however, regardless of where it occurs. No one should be arrested or hassled for hand-holding, or cruising, or talking, or flirting, or other non-sexual touching.

As a practical matter, regardless of one’s rights, having sex outdoors is a risky business. For one, based on numerous reports to us, we believe that some police will overlook sexual activity of non-gay people occurring outdoors, but arrest gay people engaged in sexual activity in the same types of venues. Another concern is that some police “hunt” for gay people having sex outdoors in park lands and rest areas -- sometimes in uniform and sometimes as undercover decoys. Either way, a person can be charged with the lewd and lascivious conduct.

Does Vermont have a “sex offender registry” type of law?

What types of crimes are deemed to be “sex offenses”?

In addition, Vermont law allows the state to request that a person be designated as a sexually violent predator within ten days after that person is convicted of sexual assault or aggravated sexual assault. The court decides this at the time of sentencing and requires clear and convincing evidence that the convicted sex offender suffers from a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses. ¹²²

How can I found out what charges I have been convicted of?

VCIC, Department of Public Safety
103 South Main Street
Waterbury, VT 05671

What if my conviction is really old?  Or in another state?

• those convicted of a sex offense in Vermont on or after July 1, 1996;
• those convicted in Vermont or another state before July 1, 1996, but a) released from incarceration on or after that date, or b) being supervised in the community as of that date; and
• those convicted or released from confinement in another state on or after July 1, 1986 and who establish residence in Vermont on or after July 1, 1996.

What obligations are imposed on “sex offenders”?

When a sex offender is sentenced to probation or an alternative sentence under community supervision, or when a sex offender is about to be released from prison, the Department of Corrections forwards to the Department of Public Safety the above listed information, as updated, as well as the address upon release, the name, address and phone number of the local department of corrections in charge of monitoring the sex offender, and documentation of any treatment or counseling received. ¹²⁵

A sex offender is required to report to the Department of Public Safety annually within ten days of each anniversary of the person’s date of release. A person who has been deemed to be a sexually violent predator must report to the Department every 90 days. If a person in either of these categories changes addresses, s/he must report to the Department within three days. Upon relocating to another state, the person must notify the Department and register with the new state’s law enforcement agency within three days if the new state has a registration requirement.¹²⁶ The Department will then notify the local law enforcement agency.¹²⁷

How long do these registration requirements last?

The registration requirement continues for the person’s life if s/he had at least one prior conviction for a sex offense in another jurisdiction, if s/he was convicted of sexual assault or aggravated sexual assault (unless the age of the victim was the basis for the conviction), or if s/he was determined to be a sexually violent predator. ¹²⁹ After ten years, however, a person required to register for life can petition the district court for a termination of notification such that information about him or her is no longer given to local law enforcement and the surrounding community.¹³⁰

Who may obtain information from the registry?

In addition, the public can gain access to information about people required to register as sex offenders from the Departments of Corrections of Public Safety or from local law enforcement agencies when the requestor can state a specific concern about his or her personal safety or that of his or her family. ¹³²

What if my conviction is overturned?

What is the age of consent for sexual activity?

¹¹⁷See State v. La Forrest, 71 Vt. 311 (1899).
¹¹⁸ 13 V.S.A. § 2601.
¹¹⁹State v. Benoit, 158 Vt. 359 (1992).
¹²⁰ See State v. Franzioni, 100 Vt. 373 (1927) (sexual conduct on fairgrounds grandstand at night was not “open and gross” because it was concealed from everyone else).
¹²¹ For a full list of the offenses, see 13 V.S.A. § 5401.
¹²² 13 V.S.A. § 5405.
¹²³ Public Act 124, § 3 (1995).
¹²⁴ 13 V.S.A. § 5403.
¹²⁵ 13 V.S.A. § 5404.
¹²⁶ 13 V.S.A. § 5407 (a).
¹²⁷ 13 V.S.A. § 5411.
¹²⁸ 13 V.S.A. § 5407 (e).
¹²⁹ 13 V.S.A. § 5407 (f).
¹³⁰ 13 V.S.A. § 5411.
¹³¹ 13 V.S.A. § 5402.
¹³² 13 V.S.A. § 5411.
¹³³ 13 V.S.A. § 5413.
¹³⁴ 13 V.S.A. § 3252.
¹³⁵ In re G.T., 170 Vt. 507, 518 (2000).

Police Harassment

I am often told by police to “move along” from public areas. Is that legal?

What should LGBT people expect from interactions with police?

Police may, of course, approach a person, and make inquiries, but even if a person has been convicted of a past offense, or fails to respond, or responds in a way which does not satisfy the officer, that alone does not constitute grounds for the person to be arrested. A police officer may generally only stop a person briefly for purposes of investigation if s/he has “reasonable suspicion” that a crime has been committed or is about to be committed. ¹³⁷ In addition, in some circumstances, police officers without reasonable suspicion of criminal activity are permitted to intrude on a person’s privacy to carry out “community care-taking” functions, such as aiding people in need of assistance.¹³⁸ These intrusions must be objectively reasonable and based on specific articulable facts.¹³⁹

An arrest can only occur upon “probable cause” that a crime has been committed.¹⁴⁰ When an encounter with the police becomes too intrusive to qualify as an investigatory stop, as described above, the encounter may be deemed a full scale arrest and must be justified by probable cause. ¹⁴¹

What can I do if I believe the police have treated me improperly?

The Office of the Director
Vermont State Police Headquarters
103 South Main Street
Waterbury, VT 05671
(802) 244-7345

¹³⁶ See Kent v. Dulles, 357 U.S. 116, 126 (1958); see generally Vt. Const. Ch. 1, art. 11 (search and seizure regulated).
¹³⁷ State v. Schmitt, 150 Vt. 503, 507 (1988); State v. Phillips, 140 Vt. 210, 215 (1981) (police can make brief investigatory stop based on reasonable suspicion to ask a few questions, but further detention must be based on consent or probable cause); Terry v. Ohio, 392 U.S. 1, 16 (1968).
¹³⁸ State v. Marcello, 157 Vt. 657, 658 (1991).
¹³⁹ State v. Burgess, 163 Vt. 259, 262 (1995).
¹⁴⁰ V.R. Cr. P. 3(a).
¹⁴¹ State v. Chapman, 800 A.2d 446, 449 (Vt. 2002).

Students' Rights

Harassment & Discrimination at School

Are there any laws protecting gay, lesbian, bisexual and transgender students in Vermont?

What kinds of conduct does the law cover?

Harassment and discrimination are also explicitly prohibited at Vermont state colleges, which are required to establish policies and enforcement procedures to address discrimination complaints. ¹⁴⁴

Are there other state laws that protect me from discrimination and harassment at school because of my sexual orientation?

In addition, school boards are also required to develop, adopt, ensure the enforcement of, and make available harassment and hazing prevention policies.¹⁴⁷ These policies must be at least as stringent as the model policy established by the Vermont Department of Education, which expressly prohibits discrimination based on sex and sexual orientation. The model policy can be found at www.state.vt.us/educ/new/pdfdoc/laws/model_harass_07_01.pdf .

Are there federal laws that protect me?

The U.S. Department of Education:
Office of Civil Rights
J.W. McCormack Post Office and Courthouse
Room 701,01-0061
Boston, MA 02109-4557
(617) 223-9662
OCR_Boston@ed.gov

What can I do if I’m being discriminated against at school?

Take a look at your school policies and notify whoever is supposed to be notified -- usually a vice principal or Title IX coordinator. You should document any incidents of harassment or discrimination in writing. Once you meet with the right officials, make a note of what you told them and on what date and ask when they will be getting back to you with a response. If they don’t help you or don’t follow through, you may wish to write to the principal and superintendent and ask for them to end the discrimination. Keep copies of all documentation for future reference.

At the same time, or after contacting the administration as set out above, you may want to contact the Safe Schools Program of the Vermont Department of Education. This program is responsible for implementing initiatives related to the equal educational opportunities and anti-harassment provisions discussed above. You can reach them at:

Safe Schools Program
Vermont Department of Education
120 State Street
Montpelier, VT 05620-2501
(802) 828-3130
www.state.vt.us/educ/new/html/pgm_safeschools.html

¹⁴² 16 V.S.A. § 1.
¹⁴³ 16 V.S.A § 11 (26).
¹⁴⁴ 16 V.S.A. § 2182.
¹⁴⁵ 9 V.S.A. § 4501.
¹⁴⁶ 9 V.S.A. § 4502.
¹⁴⁷ 16 V.S.A. § 565.

Gay / Straight Alliances

Do students have the right to form Gay Straight Alliances in their schools even if the principal or community opposes it?